Mr Homer worked as a legal advisor for the Police National Legal Database. At the time of his appointment, applicants for the role needed to either hold a law degree, or could hold a lesser qualification in law if they had exceptional experience in criminal law. Mr Homer was a former police officer, and this experience qualified him for the role without the need for a law degree. After he had been appointed, having a law degree became essential for appointment to the post, but this did not affect him as an existing employee.

In 2005, in an attempt to introduce a formal career structure, and assist with recruitment, the Police National Legal Database introduced a new grading scheme with three grades set above a starting grade. In order to achieve the most senior grade, it was necessary to hold a law degree. Mr Homer qualified for the next most senior grade, but could not reach the top grade because he did not have a law degree.

At the time this new grading structure was introduced, Mr Homer was 62. It was expected that he would retire at 65. If he was to try to get a law degree, at the same time as working, it would take him at least four years, and thus it was impossible for him to achieve a law degree, and the top grade for the role, before he retired.

Having exhausted the internal grievance procedure, Mr Homer brought a claim alleging that the requirement that an individual hold a law degree to get to the highest grade amounted to indirect age discrimination.

Indirect age discrimination arises when an employer imposes a requirement which puts people with a particular “protected characteristic” (such as people in a particular age group) at a particular disadvantage compared with others. Indirect discrimination is capable of being justified, although the main feature of the Homer case was whether the requirement for a law degree was capable of amounting to indirect age discrimination in the first place.

The employment tribunal

The employment tribunal which originally heard the case decided that the requirement for a law degree did put people aged 60 – 65 at a particular disadvantage, since if they did not already have a law degree they could not obtain the degree, and higher grade that went with it, before retirement. Younger people could.

The Employment Appeal Tribunal and Court of Appeal

Both the Employment Appeal Tribunal and the Court of Appeal found that the real reason why Mr Homer was at a disadvantage was not so much because of his age, but because of his impending retirement. If he hadn’t been shortly due to retire then he would have been able to obtain his degree and reach the higher grade.

“A requirement which works to the comparative disadvantage of a person approaching compulsory retirement age is indirectly discriminatory on grounds of age. There is … ‘unreality in differentiating between age and retirement’.”

In other words, retirement and age are so connected that a disadvantage caused by retirement is effectively the same as a disadvantage caused by age. Lady Hale drew a comparison with the imposition of a requirement for employees to have beards. This would undoubtedly amount to sex discrimination, despite the fact that it seems to relate to beards, rather than directly to gender. The two are so closely linked that it would be artificial to draw a distinction.

Commentary

I find this case very difficult to analyse. As it has made its way through various stages of the judicial process, I have gone from thinking that it couldn’t possibly be age discrimination, to thinking that it must be age discrimination, and back to thinking that it isn’t age discrimination.

One way of looking at it would be to compare Mr Homer’s situation with that of a fellow worker who was 42 at the time the requirement was imposed. Imagine that both Mr Homer and his colleague study law on a four year course. Up to age 65 and 45 respectively, they would be in exactly the same position. At that point, Mr Homer’s disadvantage would become apparent – he would retire at 65, but his colleague could continue to acquire his degree and attain the higher grade. If Mr Homer hadn’t retired, he too would have acquired his degree and attained the higher grade.

That seems to me to make it clear that the real reason for any disadvantage suffered by Mr Homer is, as the Employment Appeal Tribunal and the Court of Appeal found it, his retirement – not the particular rule or his age as such.

The Supreme Court may well agree with such an analysis but, of course, they went on to find that for these purposes retirement and age are so closely linked that they are effectively the same thing.

I’d like to suggest another way of looking at this. If it is the retirement that caused the “particular disadvantage”, then isn’t it retirement itself that requires analysis? At the time, there was an exemption from age discrimination law for retirement of employees at 65, so the retirement itself was perfectly lawful. The cause of Mr Homer’s disadvantage was his retirement, and he had no right to complain about that.

There is a curious factor about this particular case which is addressed in the judgment of Lord Hope (at para 29):

“… it was Mr Homer’s own decision to retire when he reached the normal retirement age of 65 and not stay on so that he could get the benefit of his law degree. But I do not think that it follows that his age had no bearing on the issue. The time available to complete the law degree and get the benefits that would flow from it was inevitably linked to the age of the person concerned … The number of years that [Mr Homer] had left to him before he could reasonably expect to retire meant that his age had a direct bearing on whether he would be disadvantaged by the requirement. He was, in effect, being forced to work on beyond the normal retirement age so that he could obtain the benefit. This was, in itself, indirectly discriminatory.”

So even if there was no compulsory retirement at 65 then Mr Homer would still be at a disadvantage in having to work on beyond the date at which he would normally expect to retire. If that is true, then my suggested analysis cannot be correct.

I still find this a difficult case.

As ever, criticism, clarification and illumination gratefully received in the comments.

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3 comments

“There is ….unreality in differentiating between age and retirement”

I agree and would ask, what has caused the barrier ? Is it the time to attain the degree for this particular employee that is the issue or the age of the employee. The key here is Time.
Not the age and certainly not retirement age. Could this employee obtain a degree within the required time frame?

Did he have time to achieve it? Was there another way round this that could be exploited. City University offer a one year accelerated course on the LLB for mature students.

But then again would this employee be able to sit down to academics at his age? Like you I am a little confused

I too share your err… disquiet about the reasoning in this case. If it were a compulsory retirement, then I think I agree with you that it should be the existence of a compulsory retirement age that is seen as the cause of the disadvantage, and provided the retirement age is not itself unlawful age discrimination then we ought not to be able to attack it by the back door as the Supreme Court have done here. Put another way, one might very well argue (as the court did here) that there is an “‘unreality in differentiating between age and retirement”. But where retirement has specifically been made legal, but other forms of age discrimination are not, then in my view not only CAN one differentiate, one MUST.

But the fact that Mr Homer had a choice whether to retire makes it even more bizarre than if it were a compulsory retirement. In that case I think the “particular disadvantage” test should be carried out by examining the position of people at other ages who wish to leave the workforce in the next three years. In such cases there is clearly no disadvantage.

The other point about this case is that it preceded the removal of the default retirement age laws. Now, I would think the arguments would take on a different flavour, although frankly I wouldn’t trust the Supreme Court to make any better job of it this time around. Anyone remember Malcolm? Rutherford? I think I’ll now add Homer to my growing list of Supreme Court discrimination law dogs’ breakfasts.